eDiscovery Update: Advising Clients on Use and Preservation of Social Media Evidence

The Daily Record: eDiscovery Update: Advising clients on use, preservation of social media evidence by Peter Coons

This article was originally posted on The Daily Record.

This post explains the ethical responsibilities and obligations of attorney’s when advising clients on privacy settings on various social media sites. 

It shouldn’t be a surprise that messages, posts and pictures from social media are discoverable. It also shouldn’t be shocking that litigants may post outrageous messages, posts and pictures. Are you representing a client who is claiming he or she has been injured at work, yet on their Facebook site are pictures showing them on their recent excursion to scale Mount Kilimanjaro?

What options do you have with respect to advising your client on social media activity? What about one who is embroiled in litigation? Is it ethical to tell your client to deep-six their social media sites so opposing counsel can’t scour any publically available pages? Can you advise your client to set the privacy settings to the max so only friends and family can see their tweets? Should a client be permanently deleting relevant, but potentially negative material on sites?

Luckily for attorneys in New York there is guidance for these questions and others. On July 2, 2013, the New York County Lawyers Association issued an ethics opinion stating that attorneys may advise clients to take advantage of privacy settings and also may direct clients to remove information from social media sites if that information can be properly preserved (assuming it is relevant).

Privacy settings

Regarding privacy settings the opinion states:

“Social media users may have some expectation of privacy in their posts, depending on the privacy settings available to them, and their use of those settings. All major social media allow members to set varying levels of security and ‘privacy’ on their social media pages. There is no ethical constraint on advising a client to use the highest level of privacy/security settings that is available. Such settings will prevent adverse counsel from having direct access to the contents of the client’s social media pages, requiring adverse counsel to request access through formal discovery channels.”

However, prior to this statement the opinion states:

“Although all of the major social media outlets have password protections and various levels of privacy settings, many users are oblivious or indifferent to them, providing an opportunity for persons with adverse interests to learn even the most intimate information about them.”

This suggests that “many” users are oblivious to privacy settings. Wait, you the attorney are a user, too. Aren’t you also oblivious? Quick, name every single social media site in existence. Good job. Now please tell me the privacy settings of each one and how to set it to the maximum level or at least a level sufficient enough so your client isn’t exposing potentially negative communications or photos. What do you mean you can’t do that? In addition to being a great lawyer and advising your client on legal issues you have to be a social media privacy setting expert. You can add that to your LinkedIn profile now, but please make sure your privacy settings are such that only your immediate contacts can view it.

All jokes aside, this is a burden and an opportunity. A burden because you have to now be a virtual guru in multiple social media platforms and an opportunity because you can now advise your clients to “hide” their everyday musings so only authorized users can view them.

You don’t have to be an expert on every single site as that is simply not possible or practical. But it is your duty to know that social networking sites do have privacy settings. If your client informs you they are using one that you have never heard of then ask someone about it. Better yet, research the site yourself and ask your client to show you how he or she uses it and what’s on it. Heck, the information on the site may be completely irrelevant.

In my opinion, the biggest challenge is talking to your clients about all the possible places evidence could exist on the Internet, in cyberspace, on social media sites or more traditional sources and then identifying what is potentially relevant, how to preserve it and finally how to ethically restrict access to any adverse parties.

Taking it down!

What if privacy settings aren’t enough? What if you want your client to shut down his or her site and to stop posting pictures of armoires to Pinterest? Can you do that?

“Given the growing volume of litigation regarding social media discovery, the question arises whether an attorney may instruct a client who does not have a social media site not to create one: May an attorney pre-screen what a client posts on a social media site? May an attorney properly instruct a client to ‘take down’ certain materials from an existing social media site?”

Did you know that you can put your Facebook account in a state of hibernation? I know because I do it all the time. I deactivate my account (not delete) and then reactivate it a few months later if I need to get in touch with someone. Once reactivated, I could see all my old posts, pictures, messages and pokes. Nothing was deleted. However, when my account was inactive, it was as if Peter Coons didn’t exist on Facebook. This may be an option for your clients if you don’t want them to have material accessible by anyone, even friends and family. You never know who is connected to whom and can see what. Plus, who has time to figure out all of the privacy settings, which seem to change all the time.

Is advising a client to deactivate their Facebook account ethical?

“Under some circumstances, where litigation is anticipated, a duty to preserve evidence may arise under substantive law. But provided that such removal does not violate the substantive law regarding destruction or spoliation of evidence, there is no ethical bar to ‘taking down’ such material from social media publications, or prohibiting a client’s attorney from advising the client to do so, particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user’s computer.”

I am not a lawyer, but based on my interpretation of the above excerpt it appears it’s an acceptable course of action. However, that is just one site and one method. There are hundreds of social media sites and not all can be deactivated and frozen in time.

My ending comment and advice is one I often put forward. Go and test it for yourself and/or ask an expert. The other day I heard about a social media platform that was completely new to me. It’s called Yik Yak and based on my limited research it is used by college age kids to “anonymously” chat with one another. It was certainly interesting to read what college kids are chatting about these days. In case you didn’t know, everyone in college is having a lot more fun than I am writing this article or you reading it. My point is that I had never heard of this platform so I did some research on the Internet and I asked a friend, who happens to be a college professor, about it and its use by students. Easy steps that you can and should do when introduced to any new potential source of ESI.

In my opinion, it’s an attorney’s ethical responsibility to know a bit about social media platforms used by their clients. If you don’t agree with my opinion then I encourage you to read the opinion and form your own. The full opinion can be found here.

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